Political and Constitutional Reform CommitteeWritten evidence submitted by The Centre for Public Scrutiny (CfPS)


1. The Centre for Public Scrutiny (CfPS) welcomes this inquiry and the draft code prepared by Professor Colin Copus as an important contribution to the debate about whether power, responsibility and accountability should lie more at local than at national level. We believe that mechanisms to secure effective public scrutiny should be viewed as central to all debates about this rebalancing of power. If there is to be a codification of the relationship between central and local government, it should make clear not only where the power lies to take decisions on particular issues, but also how those who will wield that power will be scrutinised and held to account in a meaningful and constructive way—whether at local or national level. These principles have informed our comments below on the draft Code.

About CfPS

2. The Centre for Public Scrutiny is widely regarded as the leading national voice for public scrutiny and accountability. We are an independent charity which aims to:

enhance understanding of what scrutiny and accountability mean, why they matter and how they can benefit everyone, including decision-makers;

provide space for decision-makers, scrutineers and other stakeholders to share ideas and learn together;

highlight what works well and encourage people to try it in their area; and

provide evidence-based and relevant guidance that gives people the tools to approach their role with confidence.

3. We promote policy and provide wide ranging practical support. We work across government (for example with the Department of Health, Communities and Local Government, Home Office, Department of Work and Pensions), with the Local Government Group and with stakeholders across primary and acute healthcare, regulators, in parliament and with academics and other think tanks. We have supported councils, NHS bodies, police authorities, universities, Local Involvement Networks and others individually and collectively through our comprehensive published guidance, on-line tools, events and network of expert advisors.

4. In summary, our mission is to promote better scrutiny to achieve greater accountability, transparency and involvement. We believe that better scrutiny means better government, because someone who makes a decision should not be the only one to review or challenge it.

Summary of our Comments on the Draft Code

We welcome the principle of codification;

The European Charter of Local Self-Government should form a more explicit basis for the code;

There should be more emphasis on the accountability of government (local and central, but particularly local) to citizens; and

The article on regulation should emphasise the important principles of local self-regulation and improvement.

Comments on the Draft Code

1. We welcome the principle of codification

1.1 We welcome the general approach towards the draft code prepared by Professor Colin Copus, and in particular the proposal that in principle there should be a codification of the central-local relationship. The Committee’s determination to tackle this long-standing issue is to be welcomed.

1.2 We believe that a strong code would add clarity and transparency to the relationship between central and local government. In other words, central governments could be scrutinised and held to account against a public commitment to localism articulated in quite specific terms. It would also militate against the general trend for political parties to be generally localist in opposition but specifically centralist once they enter government. We think that this would be in tune with the thrust of the coalition’s Programme for Government and its commitments to transparency.

1.3 However, we do believe, as stated in our original evidence and in our oral evidence to the Committee, that codification of the status quo is not to be welcomed. After a sustained period of central accretion of powers, the balance needs to be re-tipped back towards the local level. The Coalition government has expressed its commitment to achieving greater decentralisation and localism, but until this is achieved, codification must be wary of entrenching a position that is out-of-balance.

2. More emphasis on the European Charter of Local Self-Government

2.1 Our main query about the code as currently drafted is to ask why the European Charter of Local Self-Government was not used more explicitly as the basis for the draft code. It contains the broadest and most universally accepted set of principles around local self-government and would seem to provide the strongest basis for any codification exercise. Since these principles have been accepted (in spirit if not in law) by successive governments to varying degrees, but the imbalance of power between central and local government has been maintained and even extended further towards the centre, it could be argued that only by putting it on a statutory footing in a code such as the one suggested here, will the principles become meaningful and enforceable.

2.2 For example, the European Charter of Local Self-Government at Article 4 states that: “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen.” This is the strongest possible statement of the principle of localism, since it does not prescribe what public responsibilities are, and in fact they could be extremely limited, with more power and responsibility left with individuals, as the current government has argued. But where there are public responsibilities, they should be exercised by democratic bodies closest to—and therefore more accountable to—citizens acting either individually or collectively. Incorporating a statement such as this would strengthen Article Two as currently drafted, for example.

2.3 Article Three of the draft code provides for a “general power of competence” for local government. However, this would not, as currently drafted, prevent central government potentially interfering to an unwarranted degree in matters properly left to local discretion, since it only gives councils “discretion to exercise their initiative with regard to any matter which is not excluded from their competence of assigned to any other authority or body”. We argued in our initial evidence that to avoid the potential for undermining the principle behind the “general power of competence”, it should be underpinned by a “presumption of subsidiarity”—that decisions are made at the most local level appropriate to the nature and scale of the decision. Without such an underpinning presumption, there is no clear basis on which to exclude matters from local authority competence, other than the whim of central government.

3. More emphasis on accountability of government to citizens

3.1 We feel that codification of the relationship between central and local government should be clearly based on principles about the relationship of all governmental bodies to citizens, and in particular their accountability to citizens. One of the basic arguments in favour of codification is that it will protect local government, which is important because democratic local government is the layer of government closest to the citizen and is therefore more accountable. Codification therefore has at its heart issues of governance and the relationship with citizens.

3.2 We would therefore argue that the current draft code could say more about how councils will be accountable to their citizens, in return for the freedoms and protection from central government conferred on them by codification. One example of this would be at draft Article Six on Council Governmental Systems. Rather than talking simply about different systems and structures, this article could set out some clear principles of scrutiny, transparency, accountability and involvement, which councils could be expected to meet using whatever system of governance is appropriate locally. We like the idea of a regular review and a publicly available Governance report as suggested, but feel that the code is a good place to set out some common principles which are important to us as a democracy, against which citizens could test their local system and evaluate the public report.

3.3 Our 2010 research, Accountability Works, which we submitted with our initial response to this inquiry, set out how the principles of accountability, transparency and involvement are the three pillars which support both representative democracy (enshrined in our system of local elections) and participative democracy, as illustrated below. The code could incorporate these (or similar) principles and councils would be expected to demonstrate how they are meeting them in their systems of governance.

4. The balance between central and local self-regulation and improvement

4.1 As autonomous, locally elected and accountable bodies, local councils are primarily responsible for their own performance and improvement. Local scrutiny by democratically elected representatives, free to challenge those responsible for spending public money and delivering services, and able to draw on a range of sources of evidence, should be emphasised in the code as the first and most important level of regulation and performance management for local authorities. Any central regime should be light touch and exist as a backstop for situations where local scrutiny and self-regulation either is ineffective or has identified serious problems that require external intervention.

4.2 Article 4 in the draft code should therefore make reference to this presumption of local self-regulation playing the primary role in service improvement and ensuring value for money in the expenditure of public money, with central regulation focused on services for the most vulnerable.

4.3 It may also be appropriate to enshrine in the code a reference to the emerging audit regime. If there is—as currently proposed—to be a more competitive market in the provision of audit services, with authorities free to appoint their own auditors and determine the scope of local audit, it would provide an appropriate safeguard for the expenditure of public money to set out an expectation that local audit will meet certain standards, for example in the Code of Audit Practice. This issue emphasises again the importance of not enshrining the status quo but rather of focusing on the key principles that should underpin a mature and balanced central-local relationship.

5. We would be happy to develop any of these points further or to work with the Committee as it takes this important task forward. The Committee is to be congratulated on pursuing a resolution to this tricky issue with clarity and determination.

April 2011

Prepared 28th January 2013